State of Iowa v. Charlie Gary, III

IN THE COURT OF APPEALS OF IOWA

No. 21-1476
Filed June 7, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

CHARLIE GARY III,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.

Charlie Gary III appeals his first-degree murder conviction. AFFIRMED.

Karmen Anderson, Des Moines, for appellant.

Brenna Bird, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Tabor and Greer, JJ.
2

BOWER, Chief Judge.

Charlie Gary III was convicted after a jury trial of first-degree murder, first-

degree burglary, first-degree robbery, and abuse of a corpse. On appeal, he

challenges the sufficiency of the evidence of malice aforethought to support his

first-degree murder conviction.1 Because there is substantial evidence from which

the jury could find malice aforethought, we affirm.

On January 7, 2020, seventy-four-year-old Robert Long was found

strangled in his home. Long’s body was leaning over the living room couch with

his pants around his ankles. There were ligature marks on his neck, and a red

elastic exercise band was found nearby. His hands were by his neck and his

fingers were clenched. There was dried blood and severe swelling to his rectal

area.

The home had been ransacked. Items were knocked over in the hallway

and living room. The bedroom drawers had been rifled through, money bags were

strewn on the floor, and a briefcase and lockbox were pried open. 2 Family

members noticed a TV, camera, change jar, cash, and Long’s cell phone were all

missing. His blue Ford Taurus was not in the driveway.

1 Gary also asserts the prosecutor engaged in misconduct. He concedes no
objection was made to preserve his claims of prosecutorial misconduct. We
decline his invitation to bypass error-preservation and we do not address his
prosecutorial misconduct claims further. See State v. Smith, No. 18-2052, 2020
WL 376554, at *4 (Iowa Ct. App. Jan. 23, 2020) (finding error was not preserved
because “defendant waives his right to complain of prosecutorial misconduct if a
motion is not made ‘before submission to the jury’” (citation omitted)). Cf. State v.
Nelson, 234 N.W.2d 368, 371 (Iowa 1975) (“[O]bjections to remarks of counsel
during final jury argument are timely if urged at close of argument and in a motion
for mistrial made before submission to the jury.”).
2 Long ran a business out of his home and kept cash for his business and an

emergency fund there.
3

A subsequent investigation pointed to Gary, who had previously been paid

to do chores for Long. On January 3, 2020, Gary had a fight with his mother about

finances. It was snowing, so he went to Long’s house hoping to earn some money

shoveling. At about 10:47 p.m., surveillance video showed Gary leaving his

uncle’s house, which was less than half a mile from Long’s house.

On January 4, Long’s phone was used to log into Gary’s Facebook account.

Gary sent Facebook messages to a friend about plans to take a cell phone to “that

phone machine at Walmart.” Matching browser history showed a search for

EcoATM, which is a machine where people can trade cell phones for cash. Gary

also sent Facebook messages to friends bragging that he had a new car. Location

data indicated the phone was in the vicinity of Gary’s house.

About 10 a.m. on January 4, Gary and his mother pawned Long’s television

at EZ Pawn. Surveillance video showed Gary driving Long’s stolen car. A couple

days later, Gary and his uncle pawned Long’s cell phone at EZ Pawn. Surveillance

video again showed Gary driving Long’s stolen car.

After midnight on January 8, police spotted Long’s stolen car with two

people inside. When an officer began to follow in a marked squad car, the stolen

car sped up and made evasive moves. The car stopped momentarily for the

passenger—Gary’s mother—to get out. The stolen vehicle sped away, crashed

into a utility pole, and then was left abandoned. Police caught Gary nearby and

identified him as the driver. They found Gary’s cell phone in the center console.

In an interview, Gary gave several stories to detectives about how he came

to have the stolen Taurus. First, he said he found a key from a Taurus in a junkyard

that just happened to work on the stolen vehicle, which he found on the street.
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Gary was confronted about his mom pawning a TV. Gary said the TV came

from his uncle’s house and he claimed he did not know the owner of the car and

had never been to the owner’s house. He changed his story a few minutes later,

saying he picked a random house, knocked, and pushed in the door when a man

answered. He took the car keys as the man lay on the floor. After first denying

going through any drawers, he admitted opening drawers and finding an empty

cashbox. He denied taking the TV, cell phone, or anything except the car keys.

Gary denied fighting with the man; he claimed the man was knocked out and lying

face down by the door.

Gary changed his story again. He admitted he knew the victim and had

been working at his home since the previous summer. Gary said he went there

that night because it was snowing and he offered to shovel the driveway. Gary

said he left the man lying unconscious on the floor.

Still later, Gary explained he was angry about an argument with his mother

and he “took it out” on the victim. When detectives asked if the autopsy would

indicate strangulation, Gary admitted he strangled the man. The detective asked

if the ligature was a belt or shoelace, but Gary said he used a “something stretchy”

that he found in the living room. He described wrapping the stretchy band around

the victim’s neck and strangling him in the hallway because he was angry. Gary

admitted he stole the TV and pawned it with his mother. Gary still insisted the

victim remained fully clothed and that he did not assault the victim in any other

way.

Later in the interview Gary said, “I strangled him and then I raped him.”

Gary explained he dragged Long into the living room, strangled him on the couch,
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and then raped him after he finished strangling him. He denied being gay and the

detective’s suggestion that some older men like to take advantage of younger men

who need money. Gary said his decision to rape the man was “just spur of the

moment” and “something new, I guess.”

Police later executed a search warrant at Gary’s home, and in his bedroom

they found Long’s stolen laptop computer.

An autopsy confirmed Long died of ligature strangulation. The ligature

marks on his neck were consistent with being caused by a knot in the red elastic

exercise band found at the scene. Long also had petechial hemorrhages in both

eyes, indicative of strangulation. The medical examiner explained at trial that

ligature strangulation causes death by cutting off blood flow to the brain; a person

loses consciousness in ten to fifteen seconds, but “that force has to be applied for

another few minutes before you suffer brain death.”

The autopsy also indicated Long had blunt-force injuries to his jaw and

scalp, several scrapes and a bruise on his abdomen, and scrapes and bruises on

his shoulder, wrist, right thigh, and left leg. Long’s anus showed dark bruising,

which is evidence of trauma. The medical examiner collected an anal swab as

part of sexual assault kit. The anal swab screened positive for seminal fluid and

contained spermatozoa. The profile from the sperm fraction of the anal swab

contained a mixture of DNA from two people, the major contributor was a 1-in-10-

nonillion match to defendant Gary.3

3The minor contributor was too weak for identification. The expert explained “we
would expect somebody’s own DNA to be in their own anus.”
6

The jury was instructed that to find Gary guilty of first-degree murder the

State was required to prove beyond a reasonable doubt that Gary strangled Long,

Long died as a result of being strangled, Gary acted with malice aforethought, and

he was participating in first-degree burglary or first-degree robbery.

The jury found Gary guilty of murder in the first degree, burglary in the first

degree, robbery in the first degree, and abuse of a corpse. On appeal, Gary claims

there is insufficient evidence of malice aforethought to sustain his first-degree

murder conviction.

We review challenges to the sufficiency of the evidence for correction of

errors at law. See State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022). A verdict

will be upheld if substantial evidence supports it. State v. Wickes, 910 N.W.2d

554, 563 (Iowa 2018). “Evidence is substantial if, ‘when viewed in the light most

favorable to the State, it can convince a rational jury that the defendant is guilty

beyond a reasonable doubt.’” Id. (citation omitted). “Evidence is not insubstantial

just because it might support a different conclusion; the only question is whether

the evidence supports the finding actually made.” State v. Koromah, No. 21-1606,

2023 WL 3092501, at *3–4 (Iowa Ct. App. Apr. 26, 2023) (finding substantial

evidence of malice aforethought where the defendant appeared to aim at victim

and fired more than one shot and the inferences arising from his actions after the

shooting and shifting stories to police about what happened).

The jury was instructed, “‘Malice’ is a state of mind which leads one to

intentionally do a wrongful act to the injury of another or in disregard of the rights

of another out of actual hatred, or with an evil or unlawful purpose.” Accord State

v. Green, 896 N.W.2d 770, 779 (Iowa 2017) (defining malice as “that condition of
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mind which prompts one to do a wrongful act intentionally, without legal justification

or excuse” (citation omitted)).

“Malice aforethought” was defined to the jury as “a fixed purpose or design

to do some physical harm to another which exists before the act is committed. It

does not have to exist for any particular length of time.” Malice aforethought “may

be found from the acts and conduct of the defendant, as well as the means used

to do the wrongful and injurious act.” State v. Kinsel, 545 N.W.2d 885, 888 (Iowa

Ct. App. 1996).

The jury was also instructed, “If a person has the opportunity to deliberate

and uses a dangerous weapon against another resulting in death, you may, but

are not required to infer that the weapon was used with malice,” and “Malice

aforethought may be inferred from the defendant’s use of a dangerous weapon.”

Accord State v. LuCore, 989 N.W.2d 209, 217 (Iowa Ct. App. 2023). A dangerous

weapon was defined, in part, as “any sort of instrument or device which is used in

such a way as to indicate the user intended to inflict death or serious injury, and

when so used is capable of inflicting death.” On our review, we conclude there is

substantial evidence to support the jury finding of malice aforethought.

Gary admitted he went to Long’s house in search of money. See State v.

Nelson, 791 N.W.2d 414, 426 (Iowa 2010) (“Motive can be relevant to whether a

defendant acted with malice aforethought.”). Gary admitted he strangled Long

because he was angry, which supports a finding that he acted with a fixed purpose

to do physical harm. See State v. Ayers, No. 01-0365, 2002 WL 985007, at *2

(Iowa Ct. App. May 15, 2002) (“We have previously considered evidence of a

defendant’s anger when assessing the sufficiency of evidence supporting a finding
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of malice aforethought.”). The fact that asphyxiation takes several minutes is also

evidence that supports a finding that he acted with a fixed purpose to do harm, as

is the evidence of all the other injuries inflicted on Long—blunt force injuries to the

jaw and scalp; bruises on the abdomen, shoulder, wrist, thigh, and leg; and the

trauma to the anus. Viewing the evidence in the light most favorable to the State,

we are convinced that a rational factfinder could find Gary guilty of first-degree

murder beyond a reasonable doubt. We affirm.

AFFIRMED.